Introduction
Another public outrage attended the ex-parte order granted by a Lagos High Court against the Nigeria Labour Congress (NLC), restraining it from calling out workers on a planned nationwide strike to protest the hike in price of petroleum products by the Federal Government. An Abuja High Court had refused the application, because there was no genuine case of urgency. The Federal Government went down to Lagos and surprisingly, a Lagos High Court, which had co-ordinate jurisdiction with the Abuja High Court granted the order. The NLC President, Adams Oshiomhole had to tell the whole world that the order was not binding on the NLC, as it was obtained from the “Black market”. The strike went on as planned and the image of the Judiciary was worse off, and its independence seriously put in question.
Another controversial ex-parte order, was that made by a Judge in the Abuja Division of the Federal High Court, restraining the Governor of Anambra State Dr Chris Ngige from parading himself as Governor. The order (which, apart from the questionability of the perceived extreme urgency attending it) could not be reconciled with the state of immunity enjoyed by the Governor under the Constitution. The Governor had to borrow the “Black market” appellation from Oshiomhole. Even more controversial and outrageous ex-parte orders, were dished out by the same court on the Anambra crisis alone.
At the heart of the issue of abuse of ex-parte orders (especially in political issues), is the attendant erosion of public confidence in the independence and impartiality of the Judiciary. The ugly implications were rightly summed up by a writer as follows:
“In these instances of judicial recklessness, there was always the palpable belief that unseen hands moved the court to issue such controversial ex-parte orders. That is the meaning of the ‘black market’ reference, made by Oshiomhole and Ngige. None of them was prepared to obey a ‘black market’ order obtained outside the ‘official market’! They never obeyed and nothing happened!”
Abuse of ex-parte injunction, aside from the grave implications it has on the independence of the Judiciary, is also capable of wide scale socio-political disaster, as was the case with the annulment of the June 12 Presidential Election. The Judiciary set the key note of the disaster that followed, when an Abuja High Court presided over the late Hon. Justice Bassey Ikpeme made an ex-parte order restraining the conduct of the Presidential election.
In the popular case of Kotoye v CBN & Ors (1989) LPELR-1707(SC) the Supreme Court settled the principles governing the grant of ex-parte injunctions. Principally, the order can be made,
(a) When there is a real urgency, but not a self-induced or self-imposed urgency.
(b) Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and
(c) Where there is a real impossibility of bringing the application for such injunction on notice, and serving the other party.
When these factors are inapplicable, a wise Judge that imbibed good judicial milk would exercise his/her discretion by turning down the application, and asking the Applicant to put the Respondent on notice. The institution has always stood against the menace of this abuse, over the years. The former Chief Justice of Nigeria, Hon. Justice Mohammed Bello once bemoaned,
“indeed, there is urgent need among some of us, the Judges, to appreciate that ex-parte injunction which was devised as a vehicle for the carriage of instant justice in proper cases, should not be converted into a bulldozer for the demolition of substantial justice, we should all realise that justice should be done to public functionaries and public institutions”.
It has also been reiterated that Lawyers equally have a role to play, in the war against abuse of ex-parte injunction. In this direction, the Hon. Justice C. P.N. Selong opined thus:
“In as much as the speech of the learned Chief Justice was directed at Judges, I beg to opine that the same caution should apply to legal practitioners, after all both Judges and legal practitioners are Ministers in the Temple of Justice. It is my humble view that an honest Lawyer who abides by the ethics of the profession, should not bring an application which is manifestly unjust”.
The need for restraint from both the Bench and the Bar on the issue was reiterated at the Annual Bar Conference, Enugu, by the then Chief Justice of Nigeria, Honourable Justice Muhammadu L. Uwais, who counselled thus:
“I think it is not out of place to appeal to legal practitioners at large, to exercise more restraint in and desist from advising their clients to bring absurd applications to court for ex-parte injunctions. You will agree with me that, unless such applications are brought, the inconsiderate and reckless Judges amongst us, will not find the opportunity to embarrass the Judiciary and the profession in general’’.
It must be noted, that it is not in all cases where a Judge grants an order perceived to be wrong, that an actual case of influence arises. However, the perception of the public about justice is important – whether such perception is rightly or wrongly placed. This is because the standard of justice has always been objective: based on the notion of the reasonable man. Justice must not just be done, but manifestly be seen to be done. As one writer aptly put it:
“The role of the Judiciary in maintaining socio-political order cannot be compromised, and once the citizen believes that somebody, other than the law and his judicial conscience, tells the Judge what to say or do, then, the dangers of a system break down and institutional failure becomes real”.
Accordingly, the resolve of the National Judicial Council (NJC) to henceforth, deal with Judges who grant ex-parte orders with recklessness cannot but be supported and encouraged. Charity begins at home. The filthy Augean stable, must be cleansed.
We have concentrated on the issue of in-house cleaning by the Judiciary itself, because we realise that the most ready and devastating blow to the independence of the Judiciary in the mind of the public is usually struck by the inability of some of the Judges themselves to conduct the affairs of the Bench so judicially and judiciously, as to inspire public confidence in their independence from external influence. Even some Lawyers themselves fall into the league of those members of the public who doubt the independence of the Judiciary, on the ground of questionable judicial orders. In this regard, Uche Onyegorocha, a Lawyer and member of the House of Representatives, while responding to a question from the press on the unpopular pronouncements of a Federal High Court Judge, said:
“I see undue influence in the whole process. I see a person that is not acting independently. Like I said earlier, I see people playing the drum for him in the bush and he is dancing on the street”.
But, beyond the question of conduct of the members of the Bench in handling cases brought before them, are more technical and political issues of political, economic/fiscal and intellectual independence. These we shall presently address.
Political Independence
The Judiciary ought to be apolitical in a democratic dispensation, to safeguard its independence. Accordingly, Judges should not only be free from political affiliation, but the system should be organised in such a manner as to ensure that a Judge does not give a decision biased in favour of a political party, especially the ruling party. Accordingly, Nwabueze identified two forms of judicial involvement in politics (that is, organised politics) as:
(a) decisions biased in favour of a ruling party, and
(b) judicial membership of political parties.
It is submitted that Nigeria’s adoption of multiparty democracy, is healthy for the protection of the ‘political independence’ of the Judiciary. The term ‘political independence’ should be understood to mean, the freedom of the Judiciary from having any form of political influence exerted on it as to undermine its independence from any individual, group or another arm of government. Nigeria should strive to refuse any attempt to reduce the country into a one-party democracy, since the political independence of the Judiciary would obviously be difficult to be achieved therein. The concept of an apolitical Judge, is utopian in a one-party system. According to Mr Justice Georges, a former Chief Justice of Tanzania,
“The concept of the Judge as neutral, belonging to no party in the multiparty democracy, can have no meaning …. Where there is one party”.
It has been argued that the involvement of the Executive in the appointment of Judges, undermines the imperatives for the freedom of the Judiciary from political influence. It is however, our view that the system of appointment under the Constitution is the best we can have at present. If more caution is employed in the appointment of Judges, no problem of want of independence would be posed by the appointment method. Nigeria is not yet ripe for election of Judges, or else the system would be thoroughly polluted by politics. (We shall look at the issue of appointment of Judges, subsequently).
Indications that a cross-section of Nigerians believe that a section of the Judiciary might have compromised their judicial oath, can be gleaned from this passage from a major national daily:
“The Chief Justice of the Federation, from indications, prefers his colleagues to stand above the fray of Nigeria’s turbulent political process. This position may have been informed by the ignominious role played by the Judiciary in the country’s chequered political history. But, despite the goodwill enjoyed by the Judiciary, due to a mature handling of suits that sought to stop the recent general elections, the (sic) a section of the bench may have unwittingly placed this third arm of government in the dock”. (To be continued)
THOUGHT FOR THE WEEK
“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution”. (Charles Evans Hughes)
